Less than the Least

Constitution and judicial process Archives

April 18, 2008

Precedent and Judicial Method--Stuntz

The Supreme Court’s recent lethal injection decision, Baze v. Rees, reminds me of a puzzle. Supreme Court Justices, and appellate judges generally I think, often feel bound by previous case holdings and by the core reasoning that supports those holdings. But judges rarely defer to prior decisions about legal method. If, say, case 1 holds that a particular constitutional clause is to be interpreted based on its original understanding, judges who believe in evolving constitutional meanings feel perfectly free to ignore originalist arguments in case 2, arising under the same clause. All sides in contemporary legal debates do this: Justices Scalia and Thomas apply their preferred interpretive methods whether or not the most recent majority opinions in the area do so.

Why is that? If the point of precedent is to make the law predictable, then it would seem that decisions about legal method should receive more deference than simple case holdings, not less. And in the past, I think they did receive a good deal of deference: this willingness to reargue all methodological issues in every case strikes me as a phenomenon of the last generation or two at most, not the norm in American legal history. If I’m right about that—I may not be: I’d defer to the wisdom of any good legal historians out there—this strikes me as a change for the worse, and one that has large consequences for the way constitutional law develops.

June 16, 2008

McCain's Guantanamo Opportunity--Skeel

As I was reading the Supreme Court’s new Guantanamo Bay decision this weekend, I emailed my colleague Stephanos Bibas, a fine scholar and Supreme Court watcher, to see what he thought. After explaining why he thinks “the dissenters have a reasonably strong case” given among other things the historical limitations on the writ of habeas corpus, he said:

“the majority seems influenced by the long and open-ended nature of this war on terror. I can't help but think that the Executive's bungling of Guantanamo, with the Yoo memo and the refusal to budge an inch in conferring due process protections, has swayed at least Justice Kennedy to distrust unreviewable executive discretion here. It seems to confirm Jack Goldsmith's thesis in The Terror Presidency: by constantly pushing its power to the utmost and refusing to show any respect to good-faith concerns, the Bush II administration has provoked confrontation after confrontation with the Supreme Court and lost, ultimately weakening executive authority.”

If Stephanos is correct– and I personally think he is– the Supreme Court’s ruling that the enemy combatants at Guantanamo are entitled to full habeas corpus rights seems to me both understandable and wrong. It may also be a significant opportunity for John McCain.

May 2, 2009

Pam Karlan and Souter's Seat--Stuntz

If Obama wants to appoint a Scalia for the left, he should choose Pam Karlan, a longtime colleague of mine at Virginia who now teaches at Stanford. Pam is (1) brilliant, (2) broadly knowledgeable — Cass Sunstein aside, I can’t think of anyone who knows so much about so many different legal fields — and (3) a spectacularly gifted writer. The last point matters enormously. Robert Jackson served only thirteen years on the Supreme Court, but his opinions remain influential today because of his talent with language. Many judges and justices leave their mark on the law because of their votes. Only a few have influence that lasts beyond their lifespan, and the common thread in those judicial careers is an uncommon ability to capture a complicated argument in a memorable phrase. Henry Friendly, Learned Hand, Louis Brandeis, Oliver Wendell Holmes, John Marshall — all had that talent, and many of those phrases survive and shape legal doctrine today. Intellectual horsepower helps, but horsepower alone isn’t enough to produce a lasting impact on the law. David Souter is a perfect example: he may be among the smartest Justices to serve on the Court, but he seems incapable of producing clear, tight opinions. A couple decades hence, few will cite his work.

The opposite is true of Justice Scalia, whose outsized influence stems from his ability to write captivating, scathing, and often funny opinions. Of the names I’ve seen mentioned, Pam and the D.C. Circuit’s Merrick Garland are potentially in that league; my former boss Elena Kagan may be as well. I’m not sure who is the wisest of the three, but Pam is the best writer. I know no one else who can turn out so much work that is so pleasing to read. Plus, she can be devastatingly funny. That is a recipe for the kind of influence that lasts.

Most presidents miss this point. One hears a lot about the smarts and experience of judicial appointees, but rarely about their language skills. The same is true in my line of work: productivity and intelligence count far more heavily in academic hiring decisions than a knack for the perfect turn of phrase. That is a mistake. The legal and academic markets are filled to overflowing with smart opinions and law review articles. The ones that stand out are fun to read — and those are few and far between.

May 7, 2009

Kagan, Karlan and Empathetic Judges--Stuntz

My post about Pam Karlan as a potential Supreme Court nominee (see below) got more play than I expected. (I’m always surprised when someone reads something I write. Usually, I think: this can’t be a good use of readers’ time . . .) Which is all to the good: I think Pam would be marvelous in that job. But Pam isn’t the only first-rate candidate under discussion. My former boss Elena Kagan would likewise be terrific. A big part of the reason why goes to an idea that has attracted a lot of attention of late: empathy.

Most of the talk about empathy and judging is silly. Roughly speaking, empathy means a combination of passion and understanding. Does anyone want Justices who don’t understand how some important piece of the world works? Should we fill the Supreme Court with Justices who are less than passionate about doing justice? These questions answer themselves. In any event, Karlan and Kagan share an important virtue in this regard: both have professional experiences that are unusual among candidates for this job—and both have exhibited the combination of understanding, detachment, and passion that the best lawyers bring to the table. Karlan may be the best voting rights litigator in the country; she knows the world of Southern black politics like few others. (She also knows Bill James. How cool is that?) Valuable as that is, this is more valuable still: Karlan genuinely loves her clients, and she is zealous about the business of protecting and enforcing their rights. Good for her. Kagan knows how a White House works from her time in the White House Counsel’s office under Bill Clinton, useful information for one who sits in judgment of presidents’ actions. More important still, Kagan has run the equivalent of a medium-sized business—and she ran it with a combination of cool-headed detachment and genuine devotion, for the institution she ran and for the people who work here. Good for her too. I’d still pick Pam first, but it’s a close call.

One more observation on this subject: Whenever these openings happen, there is a tendency to root for the appointment of the candidate who most nearly shares the writer’s ideology. That tendency is natural, but it ought to be resisted. All Americans benefit when Supreme Court Justices are high-caliber intellects with a flair for language, characteristics that Karlan and Kagan share. My own politics are center-right, but I want good, smart judges and Justices on the left (where Karlan mostly is) and center-left (where Kagan resides) as well as on my piece of the ideological spectrum. The current Supreme Court does not suffer from too much high-quality ideological debate. More like too little.

May 13, 2009

State Judges and the Supreme Court--Stuntz

Plenty of people have noted that recent Supreme Court picks have all come from the federal bench. The usual response is to argue that we should look for non-judges to appoint to the Supreme Court. There is some merit to that position, but I’d also look more to state-court judges.

My friend Joe Hoffmann and I are working on a criminal law casebook; in the course of selecting cases for the book, I’ve read a ton of state appellate decisions. There are certainly some bad state appellate courts out there, but there are also some excellent ones, and in surprising places: not just New York and California but Kansas and Iowa, North Carolina and Connecticut. A large fraction of the constitutional litigation that occupies the Supreme Court comes from the states; the Justices would do a better job in those cases if they had more experience with them before coming to the Court. Here’s one example of that problem (there are many others): Murder cases are rare in federal court but common in the states. If the bodies of constitutional law that regulate the death penalty—nearly all defined by the Supreme Court—are dysfunctional, as most lawyers and academics believe, the reason may be that Supreme Court Justices have too little experience with the laws and procedures at issue in murder cases. Choosing a couple of good state-court judges for Supreme Court vacancies would help to remedy that problem.

Another advantage of picking state judges for Supreme Court vacancies is that most state appellate judges are elected officials. Nominees who both have judicial experience and know what it means to run for office have a lot to be said for them: think Sandra Day O’Connor, who in retrospect looks like a pretty good choice. Perhaps President Obama, who is said to like the idea of picking a politician, can get a twofer: an elected official with judicial experience. There are a lot of them out there. Just not on the federal bench.

May 16, 2009

Soon to be Ex-Judge McConnell--Skeel

With the exception of Supreme Court speculation, the biggest news in my little neighborhood these days is the announcement that Judge Michael McConnell will step down to join the faculty of Stanford Law School. As many readers will know, McConnell was the nation’s leading religion clause scholar and a law professor at the University of Chicago and then the University of Utah before being appointed to the federal court of appeals. No doubt there are many reasons for his decision to give up his judicial robes—the desire to return to the scholarly fold and to litigate occasional, high profile cases, perhaps, or weariness with the routines of appellate judging. But surely one small factor is that any prospects for a nomination to the Supreme Court are now very dim. Judge McConnell is quite young—he’s only 53 or 54—but it is highly likely that President Obama will be in office for the next eight years. By the time there’s a realistic chance of a Republican president, he’ll be in his 60s. Given the clear emphasis these days on appointing young justices, the odds of a future nomination are small and distant.

My guess is that Judge McConnell is not the last of the high profile, Republican appointed appellate judges who will step down in the next few years.

May 26, 2009

Hispanics and Latinos--Stuntz

This is a trivial comment, but I note that all the early reports on Sotomayor’s appointment refer to her as “Hispanic.” This puzzles me. Brazilians aren’t Hispanic—they speak Portuguese—and Spaniards are. Why should Spanish ancestry matter more than, say, Dutch or Swedish ancestry? (Full disclosure: I’m descended from Swedes. We’ve already had our Supreme Court Justice—Earl Warren, whom his political ally Tom Dewey once called “that big dumb Swede.”) And why should Brazilians count for less than, say, Argentines or Bolivians? This is the great advantage of the label Latino: it encompasses all whose ancestry is Central or South American, and it excludes Europeans. Why a politically correct culture continues to use the un-politically correct terminology is beyond me.

April 29, 2010

The Supreme Court Pick--Skeel

I’m lousy with predictions, especially when they involve presidents or Supreme Court justices, but here goes: I predict President Obama will hint widely that he plans to nominate Diane Wood (the main Protestant in the running), but actually nominate Elena Kagan.

Here’s the thinking: President Obama seems to shy away from surprise nominations, so I strongly suspect the choice will be one of the names we’ve been hearing—or someone who fills the airwaves soon. There’s been so much discussion of the fact there will not be any Protestants on the Court when Stevens steps down that the President risks getting hammered if he doesn’t pick a Protestant. This makes Diane Wood the obvious choice. If she were in fact nominated, the pick would be quite ironic, since her stridently pro-choice abortion views will outrage nearly all evangelical Protestants and many others as well—much more so than the non-Protestant front-runners.

I suspect President Obama wants to select Wood but I also suspect he’s leery of a big fight over abortion. He doesn’t need a fight over social issues at the moment. This is why I think he’ll hint that Wood will be the pick, then shift to Kagan when it becomes clear that many politically active Protestants would rather see Kagan than have a Protestant justice. This would give him cover on the Protestant justice issue, while assuring a solid, sufficiently liberal pick and a less ugly confirmation battle.

Truth be told, I think this would be a good outcome, which is always a dangerous starting point when you’re making predictions.

July 6, 2010

Business Expertise and the Supreme Court--Skeel

Jeff Rosen proposed in this op-ed in the New York Times Sunday that Elena Kagan should strive to do justice to the seat she will be inheriting, which was held by Louis Brandeis in the mid twentieth century. For Rosen, this means developing a progressive jurisprudence on business and economic issues.

One question Rosen didn’t consider is this: if business and financial issues are so important in our era, why don’t the Supreme Court short lists ever seem to include business or financial experts? Brandeis himself came to the Court with both private (that is, business and commercial) and public law credentials. Others—most notably, William Douglas, a corporate bankruptcy scholar (heaven forbid!), who joined the Court in 1939—had even more business law expertise. Why isn’t President Obama—any more than President Bush before him—tapping into this kind of expertise?

One answer, I think, is that the networks that lead to the Supreme Court tend to be thin on business and financial experts. Perhaps because of the role the Supreme Court played on Civil Rights issues in the second half of the 20th Century, the very best students—the ones who are angling for clerkships with Supreme Court justices—often seem to focus heavily on Constitutional and administrative law. These students, many of whom go on to prominent teaching or legal careers, are the ones who are most likely to emerge as possible Supreme Court Justices two or three decades later.

Whatever the reason, I think we are entering a period—much like the 1930s and 1940s—when business and financial expertise are going to be crucially important on the Supreme Court. Just imagine all of the judicial challenges to the new financial reform legislation if, as seems all but certain, it is enacted. The current Court seems far from ideal for handling these cases.

Don’t worry. I’m not campaigning for the Supreme Court myself. There are few jobs for which I would be less qualified. But some of my best friends might make very good Supreme Court justices.

July 13, 2010

More on Business Expertise and the Supreme Court--Skeel

As I was imagining possible candidates for the Supreme Court with business expertise, my initial thoughts were about my colleagues in legal academia. But it occurs to me that an even better place to look might be the business world itself. Three lawyers who have great credentials and are currently general counsel at major corporations are: David Leitch, general counsel of Ford, the one major carmaker that wasn’t bailed out, and a friend from law school days; Michael Luttig, a former federal appeals judge and currently general counsel at Boeing; and Larry Thompson, a former Deputy Attorney General under President Bush and currently general counsel at PepsiCo. All three are Republicans, but I bet there are at least one or two out there on the Democratic side as well.

September 30, 2010

Justice Breyer's Anti-Originalism--Skeel

Justice Breyer has just published a book on judicial interpretation that is designed to offer an alternative to Scalia-style originalism. Here's a brief review of the book, focusing on the lack of pizazz in Breyer's good gray liberal approach.

About

We are both law professors and evangelical Protestants – a weird
combination in our time. We hope it’s also an interesting combination.
We plan to write about the things that interest us, professionally and
personally: crime and criminal justice (Stuntz), corporate governance,
credit, and bankruptcy (Skeel), the culture wars, politics, literature
and the arts, and other topics.